Indiana House Bill 1042

Summary

Indiana House Bill 1042 would bar any business or individual from selling any material that contains “sexually explicit” content unless they have registered with the Secretary of State. To register, one must inform the Secretary of the intent to sell such material and provide a statement detailing the type of material to be sold. “Sexually explicit” is defined as any content that, taken as a whole, the average person would find it appeals to the prurient interest in sex or depicts or describes sexual conduct in a patently offensive way.

Amendment: H.B. 1042 was amended [7] to add a provision that would require the Secretary of State to inform “local county officials” of retailers registered as selling any “sexually explicit materials.” The definition of “sexually explicit materials” was changed to any product or service that is “harmful to minors” under Indiana statute.

Analysis

The bill violates the First Amendment because it is a content-based tax, a prior restraint on speech and it is a license on protected speech. Retailers do not need clearance from a state before selling First Amendment-protected content. The Supreme Court has repeatedly held that a content-based restriction is presumptively invalid. It has also held that the government can neither require a license of speakers of protected communication not generally imposed nor impose a business tax specific on the dissemination of protected speech not generally imposed.

The bill would have a serious chilling effect on many retailers. The low threshold of the bill likely means that many—if not most—book, video and music stores would be subject to registration. The owner of the store would then have to decide whether they should remove the content and deprive their adult customers of the right to view and access protected material, or if they should risk losing customers to be registered as an “adult store.”

Actions on the bill

Media Coalition submits a memo in opposition [5] to the bill shortly after the bill is introduced, explaining the constitutional concerns.

In February 2008, Media Coalition submits a follow-up memo in opposition [3] to the bill, after it is amended [7] to include a provision that the Secretary of State must inform “local county officials” of retailers registered under the law, and to change the definition of “sexually explicit materials” to reflect the state’s “harmful to minors” statute.

American Booksellers Foundation for Free Expression (ABFFE), Borders and the Great Lakes Booksellers Association (GLBA) release a statement [4] opposing the bill in February.

In May, Media Coalition files a lawsuit on behalf of some of its members, local booksellers and organizations challenging the law.

Subsequent litigation

H.B. 1042 became law on March 19, 2008. In May, Media Coalition filed a lawsuit on behalf of some of its members, local booksellers and organizations in the U.S. District Court challenging the law.

On July 1, 2008, U.S. District Court Judge Sarah Evans Barker struck down the law because it fails the strict scrutiny test on content-based restrictions, it is an unconstitutional tax on First Amendment-protected material and it is an unconstitutional permit requirement on the retailer.